In a split decision last week, a federal judge upheld the $2,600-per-candidate campaign donation limit that Missouri voters overwhelmingly approved last November but ruled unconstitutional other parts of the initiative — including one designed to stop the practice of shuffling money among committees to make it harder to tell where the money is coming from.
Judge Ortrie Smith of the U.S. District Court for Western Missouri gave the parties to the case 45 days to appeal the decision. The Missouri attorney general's office, which argued the case on behalf of the Missouri Ethics Commission, should do so — though it may be a little tricky for Attorney General Josh Hawley.
Hawley received $225,000 from Herzog Contracting Corp. of St. Joseph for his campaign last year. A related company was one of the plaintiffs in the case. Hawley should recuse himself and look for outside help.
This case turned in large part on the issues of transparency and the perception of corruption. Judge Smith wrote that the Supreme Court repeatedly has upheld "the government's interest in preventing quid pro quo corruption or its appearance."
But the judge noted that the Supreme Court has further held that "there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly."
With respect, whether Donor A gives Candidate B $100,000 directly, or funnels it into Political Action Committee C, which then launders it through Committee D, is a distinction without a difference. That people don't perceive it as a potential quid pro quo is only because the money has been laundered so much, they've lost track of the pea under the shell.
The U.S. Supreme Court should fully address the many ways that big-money donors are hiding from accountability. In its otherwise disastrous 2010 Citizens United decision, the one that opened the floodgates for unlimited election spending, the court was anticipating full disclosure because "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."
As Justice Anthony Kennedy, who wrote that decision, acknowledged in 2015, "disclosure is not working as it should."
The court could fix that by taking the Missouri campaign limits case. It could also address the related questions raised by "dark money" committees such as the one employed on behalf of Missouri Gov. Eric Greitens. The court in Citizens United never envisioned anonymous donors buying influence with politicians while masquerading as social welfare corporations.
It was the late Justice Antonin Scalia, now a conservative icon, who wrote in another 2010 campaign finance case: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."
Anonymous campaigning, Scalia concluded, "does not resemble the Home of the Brave."
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